Safeguarding Justice: Supreme Court Reinforces the Sanctity of Complete Trial Records in Appellate Proceedings

 Recently, this Court in Dhananjay Rai alias Guddu Rai v. State of Bihar13 (two-Judges) took note of a Judgment rendered in Bani Singh v. State of U.P.14, as under:

“14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate Court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record.”  {Para 29}

(Emphasis supplied)

Conclusions

37. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that non-compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.

38. The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.

Ratio: 

 Right to appeal includes an opportunity for the person filing an appeal to question the conclusions drawn by the trial court. Thus, the mandates of Section 385 of the CrPC can only be followed when the record lower court is available with the Court of Appeal.

In the Supreme Court of India

(Before Krishna Murari and Sanjay Karol, JJ.)

Criminal Appeal No……………of 2023

Arising out of

Special Leave Petition (Crl.) No. 2063 of 2023

Jitendra Kumar Rode Vs  Union of India 

Decided on April 24, 2023

Citation: 2023 SCC ONLINE SC 485,2023 INSC 419 

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When court should not order retrial of criminal case?

 The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A ‘de novo trial’ or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.”

18. As discussed earlier, the High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and R. Banumathi, JJ.)

Ajay Kumar Ghoshal etc. 

v.

State of Bihar & Anr. 

Criminal Appeal Nos. 119-122 of 2017

Decided on January 31, 2017

Citation: 2017 SCC OnLine SC 74,AIR 2017 SC 804

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